Case Information
*1 ******************************************************
The ‘‘officially released’’ date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the ‘‘officially released’’ date appearing in the opinion. In no event will any such motions be accepted before the ‘‘officially released’’ date.
All opinions are subject to modification and technical correction prior to official publication in the Connecti- cut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Con- necticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative.
The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be repro- duced and distributed without the express written per- mission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** *2 MICHAEL PERUGINI v . ROSEMARY GIULIANO ET AL.
(AC 35167) Bear, Keller and Harper, Js.
Argued December 2, 2013—officially released March 25, 2014 (Appeal from Superior Court, judicial district of Waterbury, Trombley, J. [request for leave to amend]; Dooley, J. [judgment of dismissal in part]; Shapiro, J.
[judgment].) Michael Perugini , self-represented, the appellant (plaintiff).
Amber J. Hines , with whom was Paul Grocki , for the appellees (defendants).
Opinion
KELLER, J. The self-represented plaintiff, Michael Perugini, appeals from the judgment of the trial court rendered in favor of the defendants, attorney Rosemary Giuliano and the law firm with which she is associated, Giuliano & Richardson, LLC, in his action alleging mis- conduct in the defendants’ representation of the plain- tiff’s wife during the couple’s prior divorce proceedings. The plaintiff claims that the court erred in (1) sus- pending his February 8, 2012 deposition until the plead- ings were closed, (2) denying his February 22, 2012 request for leave to amend his complaint, (3) dismissing his claim of negligent infliction of emotional distress for lack of subject matter jurisdiction, and (4) striking his August 6, 2012 substitute complaint from the docket and rendering judgment for the defendants. We affirm the judgment of the trial court.
The record reveals the following procedural history. On September 9, 2010, the plaintiff, appearing before the court as a self-represented party, filed a two count complaint against the defendants for wilful violation of the Rules of Professional Conduct and negligent inflic- tion of emotional distress. The complaint alleged that Giuliano had engaged in misconduct during her repre- sentation of Kimberly Gamble-Perugini, the plaintiff’s former wife, in prior marriage dissolution proceedings against the plaintiff. Specifically, it alleged that Giuliano failed to disclose a conflict of interest resulting from her prior representation of Judge Elizabeth Bozzuto, who presided over postjudgment proceedings and issued various rulings between April 27, 2009, and June 8, 2010. Although the complaint acknowledged that any allegedly inappropriate orders issued by Judge Bozzuto had been vacated, the plaintiff sought damages from the defendants for the stress, agony, depression and expense he claims to have endured as a result of Giuli- ano’s alleged misconduct.
This action was commenced on September 10, 2010. The defendants filed a request to revise the plaintiff’s complaint on September 21, 2011, to which the plaintiff did not properly object until December 30, 2011. In the interim, the plaintiff noticed Giuliano’s deposition for October 20, 2011. On October 14, 2011, the defendants filed a motion for a protective order on several grounds, including the claim that privileged documents involving the defendants’ representation of Gamble-Perugini should not be explored and the deposition should be limited to the allegations in the complaint. On Decem- ber 6, 2011, the court, Trombley, J ., issued an order allowing the deposition to proceed by February 17, 2012, which further stated: ‘‘The areas inquired into at said deposition shall be those that are framed by the allegations in the plaintiff’s complaint . . . .’’ He fur- ther indicated that ‘‘[t]he defendants are not required to produce their file or any documents in their possession *4 pertaining to the dissolution action . . . entitled Kimb- erly Gamble-Perugini v. Michael Perugini, as the infor- mation contained therein is protected by attorney- client privilege.’’
On January 17, 2012, Judge Trombley, pursuant to Practice Book § 10-37 (b), ordered the plaintiff to revise his complaint as requested by the defendants. The plain- tiff filed a motion to reargue to which the defendants objected. On February 8, 2012, Judge Trombley denied the motion to reargue and ordered the plaintiff to revise his complaint and to incorporate the revisions ordered by the court on January 17, 2012. On February 8, 2012, the plaintiff, having not yet revised his complaint, com- menced a deposition of Giuliano. During the deposition, the plaintiff asked Giuliano questions regarding her communications with Gamble-Perugini during the prior divorce proceedings. The defendants objected, claiming that the information was protected by the attorney- client privilege and that the questions were outside the scope of the pleadings. Judge Trombley was asked to resolve the issue and, upon learning that the plaintiff still had not revised his complaint, ordered, sua sponte, that a revised complaint be filed within two weeks. Additionally, Judge Trombley suspended the deposition until, absent a motion for summary judgment, the plead- ings were closed and all the issues were framed. On February 27, 2012, the plaintiff filed a motion to reargue asking Judge Trombley to reconsider the suspension of the deposition of Giuliano, which the court denied.
On February 21, 2012, the plaintiff filed a revised complaint that still contained only two counts, wilful violation of the Rules of Professional Conduct and negli- gent infliction of emotional distress. Although the revised complaint addressed some of the defendants’ requested revisions, it also included new factual allega- tions that Giuliano had engaged in representation of Gamble-Perugini without her consent.
Only one day later, on February 22, 2012, the plaintiff filed a request for leave to amend his revised complaint, to which the defendants objected. The proposed amended complaint included with the request, dated February 22, 2012, deleted the count for wilful violation of the Rules of Professional Conduct, maintained the count for negligent infliction of emotional distress and added three new counts: fraudulent misrepresentation, conspiracy to defraud, and violation of the Connecticut Unfair Trade Practice Act (CUTPA), General Statutes § 42-110a et seq. The proposed amended complaint, in paragraphs 10 and 12 of the second count, further expanded the facts alleged in support of the plaintiff’s claim that Giuliano had engaged in unauthorized repre- sentation of Gamble-Perugini while Giuliano had knowl- edge of the couple’s reconciliation. On March 21, 2012, Judge Trombley sustained the defendants’ objection to the plaintiff’s request to file a proposed amended *5 complaint and established the two count February 21, 2012 revised complaint as the operative complaint. The court’s order stated: ‘‘While our courts have been liberal in permitting amendments . . . this liberality has limi- tations. Amendments should be made seasonably. Fac- tors to be considered in passing on a [request] to amend are the length of the delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment. . . . Whether to allow an amendment is a matter left to the sound discretion of the trial court. . . . Practice Book § 10-60 (b) provides: The judicial authority may restrain such amendments so far as may be necessary to compel the parties to join issue in a reasonable time for trial.’’ (Citation omitted; internal quotation marks omitted.) On April 6, 2012, the plaintiff filed a motion to recuse Judge Trombley, which the court denied on April 23, 2012.
On April 9, 2012, the defendants filed another request to revise the plaintiff’s February 21, 2012 revised com- plaint, to which the plaintiff objected. On May 14, 2012, the court, Dooley, J ., overruled the plaintiff’s objections, thereby requiring plaintiff to revise his complaint as requested by the defendants. The plaintiff’s second revised complaint, dated and filed on May 22, 2012, again set forth two counts of wilful violation of the Rules of Professional Conduct and negligent infliction of emotional distress. The defendants then moved to strike the second revised complaint, arguing that the Rules of Professional Conduct do not give rise to a cause of action and that the count of negligent infliction of emotional distress was barred by the doctrine of absolute immunity for attorney conduct in the course of a judicial proceeding. [2] On July 26, 2012, Judge Dooley granted the defendants’ motion to strike as to the count sounding in wilful violation of the Rules of Professional Conduct [3] and dismissed the count sounding in negligent infliction of emotional distress for lack of subject matter jurisdiction under the doctrine of absolute immunity.
On August 6, 2012, pursuant to Practice §10-44, [4] the plaintiff filed a substitute complaint, premised on simi- lar facts as previously set forth, but asserting six counts sounding in conspiracy to defraud, alienation of affection, violation of CUTPA, abuse of process, vexa- tious litigation and intentional infliction of emotional distress. The defendants objected to this substitute complaint, arguing that the plaintiff was required to request leave to amend his complaint pursuant to Prac- tice Book § 10-60 and that the amendments made by the plaintiff were retaliatory, violated prior court orders, and were prejudicial to the defendants, given the age of the case and the fact that that many of the claims and allegations already had been ruled legally insufficient and improper. The plaintiff filed an opposi- tion to the defendants’ objection, arguing that he had the right to file a substitute complaint pursuant to Practice Book § 10-44 and that the defendants’ objection was a *6 procedurally improper pleading. The plaintiff’s opposi- tion also addressed the defendants’ nonprocedural arguments that the substitute complaint violated the law of the case and prejudiced the defendants. On Sep- tember 25, 2012, the court, Shapiro , J ., sustained the defendants’ objection and struck the August 6, 2012 substitute complaint from the record. On September 27, 2012, the defendants filed a motion for judgment. On October 11, 2012, the plaintiff filed a motion for extension of time to plead and a motion to reargue. On October 17, 2012, Judge Shapiro denied the plaintiff’s motions, granted the defendants’ motion for judgment and rendered judgment for the defendants. This appeal followed. Additional facts and procedural history will be set forth as necessary.
I
On appeal, the plaintiff first challenges Judge Trom- bley’s order suspending the deposition of Giuliano until the pleadings were closed, and his order denying the plaintiff’s February 22, 2012, request for leave to amend his complaint.
A
The plaintiff first claims that Judge Trombley erred in suspending the deposition of Giuliano until such time that the pleadings were closed. Specifically, the plaintiff argues that Judge Trombley’s order suspending the deposition represented a reversal of the court’s previ- ous order compelling Giuliano to submit to a deposition before a certain date. We consider this claim to be abandoned.
At the February 8, 2012 hearing in which Judge Trom- bley was asked to resolve the dispute concerning Giuli- ano’s invocation of the attorney-client privilege, the judge learned that the plaintiff had not yet revised his complaint as required by a previous order. As a result, he ordered that the plaintiff submit a revised complaint within two weeks from the date of the hearing. Follow- ing this order, Judge Trombley stated: ‘‘The second thing we are going to do is we are going to suspend this deposition as of now, until such time as the plead- ings are closed and the issue is joined.’’ He went on to explain that the plaintiff still would have an opportunity to complete the deposition before pleadings were closed if the defendants moved for summary judgment. He then asked the plaintiff: ‘‘Fair enough?’’ The plaintiff responded: ‘‘Fair enough.’’ At no point during this hear- ing did the plaintiff object to the court’s order.
‘‘It is fundamental that claims of error must be dis-
tinctly raised and decided in the trial court. . . . Prac-
tice Book § 60-5 provides in relevant part that our
appellate courts shall not be bound to consider a claim
unless it was distinctly raised at the trial . . . . That
requirement means that it must be so stated as to bring
to the attention of the court the precise matter on which
*7
its decision is being asked. . . . As our Supreme Court
has explained, [t]he reason for the rule is obvious: to
permit a party to raise a claim on appeal that has not
been raised at trial—after it is too late for the trial court
or the opposing party to address the claim—would
encourage trial by ambuscade, which is unfair to both
the trial court and the opposing party
.
’’ (Citations omit-
ted; emphasis omitted; internal quotation marks omit-
ted.)
U.S. Bank National Assn
. v.
Iaquessa
, 132 Conn.
App. 812, 814–15,
Here, by failing to object to the court’s suspension
of the deposition, the plaintiff did not provide the court
with a timely opportunity to reconsider the order. The
record therefore is devoid of any deliberation as to why
the deposition should have continued on February 8,
2012, or how its suspension might have prejudiced the
plaintiff. Furthermore, having expressly agreed to the
court’s decision, the plaintiff cannot now seek to attack
the order on appeal. See
Menon Dux
, 81 Conn. App.
167, 170–71,
B
Next, the plaintiff claims that Judge Trombley erred in sustaining the defendants’ objection to his February 22, 2012 request for leave to amend his complaint. Spe- cifically, he argues that the court abused its discretion in failing to take a liberal approach to Practice Book § 10-60. We disagree.
‘‘Our standard of review of the plaintiff’s claim is well
settled. While our courts have been liberal in permitting
amendments .
.
.
this liberality has limitations.
Amendments should be made seasonably. Factors to
be considered in passing on a motion to amend are the
length of the delay, fairness to the opposing parties
and the negligence, if any, of the party offering the
amendment. . . . The motion to amend is addressed
to the trial court’s discretion which may be exercised
to restrain the amendment of pleadings so far as neces-
sary to prevent unreasonable delay of the trial. . . .
Whether to allow an amendment is a matter left to the
sound discretion of the trial court. This court will not
disturb a trial court’s ruling on a proposed amendment
unless there has been a clear abuse of that discretion.
. . . It is the [plaintiff’s] burden in this case to demon-
strate that the trial court clearly abused its discretion.’’
(Citations omitted; internal quotation marks omitted.)
Wagne
r v.
Clark Equipment Co.
,
At the time of Judge Trombley’s ruling, the action had been pending more than seventeen months, since *8 September 10, 2010. The pleadings still were not closed. In sustaining the defendants’ objection to the plaintiff’s request for leave to amend his complaint, the court noted that the plaintiff already had filed several com- plaints and cited the provision in Practice Book § 10- 60 (b) that allows the court to restrain amendments in order to compel the parties to join issue in a reasonable time for trial. These were proper considerations within the court’s discretion in ruling on the issue and, there- fore, we decline to upset the court’s decision.
II The plaintiff also challenges Judge Dooley’s order dismissing the plaintiff’s claim of negligent infliction of emotional distress for lack of subject matter jurisdic- tion. Specifically, he argues that the doctrine of absolute immunity does not apply to claims alleging attorney misconduct for the purpose of personal financial gain. [7] We are not persuaded.
‘‘[W]hether attorneys are protected by absolute
immunity for their conduct during judicial proceedings
is a question of law over which our review is plenary.’’
Simms
v.
Seaman
,
Our case law differentiates between actions based
on alleged misconduct by an attorney in his role as
advocate, such as defamation and fraud, and actions
that challenge the underlying purpose of the litigation
itself, such as vexatious ligation and abuse of process.
Simms
v.
Seaman
, supra,
In the present case, the plaintiff alleged Giuliano, in the course of representing Gamble-Perugini in divorce proceedings against the plaintiff: (1) failed to disclose a conflict of interest with the presiding judge, (2) exerted improper influence over the judge to obtain favorable monetary rulings, and (3) filed court actions without *9 Gamble-Perugini’s consent for her own financial bene- fit. All of this alleged conduct occurred in the context of the dissolution proceedings between the plaintiff and Gamble-Perugini. Giuliano therefore is immune from any claim of negligent infliction of emotional distress arising from that conduct. See id.
We recognize that the plaintiff alleged that certain
proceedings at issue were not brought for a proper
purpose, as they were allegedly initiated by Giuliano
without Gamble-Perugini’s consent for the sole purpose
of self-enrichment. These allegations may have properly
formed the basis for an abuse of process action, where
‘‘a legal process [is used] against another primarily to
accomplish a purpose for which it is not designed’’;
[internal quotation marks omitted]
Mozzochi
v.
Beck
,
III Next, the plaintiff challenges Judge Shapiro’s orders striking the plaintiff’s August 6, 2012 substitute com- plaint from the docket and entering judgment for the defendants.
A First, the plaintiff argues that the defendants’ objec- tion to his substitute complaint, rather than a motion to strike, was an improper vehicle to challenge a complaint filed pursuant to Practice Book § 10-44. We disagree.
‘‘The interpretive construction of the rules of prac-
tice. . . . involves a question of law and our review
. . . is plenary.’’ (Citations omitted; internal quotation
marks omitted.)
Commissioner of Social Services
v
.
Smith
,
The defendants, as part of their objection, argued that the substitute complaint violated the orders of Judge Trombley and Judge Dooley, and that it was ‘‘prejudicial in that, two years into the case, the plaintiff seeks ‘another bite of the apple’ by stating claims and allega- tions already ruled to have be legally insufficient and improper . . . .’’
We agree that to permit a party to persist in refiling pleadings in a form previously disallowed does not advance the interests of justice. Rather, it encourages needless delay and places an unnecessary and unfair burden on the party who previously has successfully stricken or objected to the improper filing. When parties engage in such tactics, their opponent and the court needlessly and repetitively are forced back to square one. Furthermore, we conclude, after reviewing the defendants’ objection and the plaintiff’s reply to it, that the court proceeded properly. Those pleadings pro- vided the parties with a full and fair opportunity to be heard, quite similar in nature to a case where a request to revise, and a consequent objection thereto, has been filed. [10]
B Next, the plaintiff claims that Judge Shapiro erred in striking the plaintiff’s August 6, 2012 substitute com- plaint from the docket because the court lacked the authority to disallow a substitute complaint filed by right pursuant to Practice Book §10-44. We disagree.
As previously noted in part III A of this opinion,
because this claim involves the interpretive construc-
tion of the rules of practice, our review is plenary.
Practice Book § 10-44 provides that ‘‘[w]ithin fifteen
days after the granting of any motion to strike, the
party whose pleading has been stricken may file a new
pleading.’’ This court has clarified that this right ‘‘is
limited to making those corrections needed to render
the claims set forth in the original pleading legally suffi-
cient. It is not an opportunity to file wholly amended
pleadings that assert new legal claims . . . permission
for which ordinarily could be obtained only in accor-
dance with the provisions of Practice Book § 10-60.’’
GMAC Mortgage, LLC
v.
Ford
,
In the present case, subsequent to the granting of the
defendants’ motion to strike, the plaintiff had the right
to file a substitute complaint correcting the legal defi-
ciencies of the stricken count alleging wilful violation
of the Rules of Professional Conduct. As the plaintiff
has since acknowledged, however, the Rules of Profes-
sional Conduct do not give rise to a private cause of
action. See
Noble Marshall
,
Instead, the plaintiff filed an entirely new complaint asserting six legal theories for relief that had not been asserted in his stricken complaint. As Practice Book § 10-44 does not provide for the assertion of new legal claims, the court properly concluded that this substitute complaint should have been accompanied by a request for leave to amend pursuant to Practice Book § 10-60 (a), only to be accepted at the court’s discretion. To allow the plaintiff to state new causes of action follow- ing the granting of a motion to strike under Practice Book § 10-44 would nullify the procedure of requiring court approved amendments pursuant to Practice Book § 10-60. Accordingly, Judge Shapiro properly held that the plaintiff could not file new causes of action follow- ing the granting of the defendants’ motion to strike and that the plaintiff violated Practice Book § 10-60 in failing to seek leave to amend his complaint.
C *12 We next consider whether Judge Shapiro improperly concluded that the plaintiff, in filing the August 6, 2012 substitute complaint, disregarded the law of the case by violating Judge Trombley’s and Judge Dooley’s previous orders. We do not agree.
We consider whether a court correctly applied the
law of the case doctrine under an abuse of discretion
standard. ‘‘The law of the case doctrine provides that
[w]here a matter has previously been ruled upon inter-
locutorily, the court in a subsequent proceeding in the
case may treat that decision as the law of the case, if
it is of the opinion that the issue was correctly decided,
in the absence of some new or overriding circum-
stance.’’ (Internal quotation marks omitted.)
Signore
v.
Signore
,
In sustaining the defendants’ objection to the plain- tiff’s August 6, 2012 substitute complaint, Judge Shapiro found that on February 22, 2012, the plaintiff filed a request to amend his February 21, 2012 revised com- plaint, which was substantially premised on claimed violations by Giuliano of the Rules of Professional Con- duct and allegations concerning unauthorized represen- tation of his former wife by Giuliano. [11] He further found that in objecting to the February 22, 2012 proposed amended complaint, the defendants claimed that that proposed amendment was untimely, as it was filed six- teen months after the return day. The defendants also claimed that the proposed amended complaint expanded previous factual allegations and added new causes of action despite the fact that the additional events alleged by the plaintiff all occurred before the return day. The defendants ‘‘asserted that the proposed amendment would delay trial . . . [and] cause them inconvenience, in that, since the inception of the matter, they had defended the action based on one set of allega- tions and causes of action, and should not be forced to start over in protracted litigation.’’
Judge Shapiro also found that Judge Dooley’s memo- randum of decision striking the first count of the plain- tiff’s May 22, 2012 second revised complaint specifically determined that ‘‘any count based on a violation of the Rules of Professional Conduct is legally insufficient.’’ Judge Shapiro then stated: ‘‘In the [substitute] com- plaint, the first count is again premised on numerous alleged violations of the Rules of Professional Conduct by [Giuliano] in her representation of the plaintiff’s former wife. . . . In each of the subsequent counts of the [substitute] complaint, the plaintiff incorporates all of the allegations contained in the first count. [12] Thus, the core of each count is premised on alleged violations of the Rules of Professional Conduct by [Giuliano] . . . . In addition, starting with the second count, the plaintiff adds in again the expanded allegations as to alleged unauthorized representation [that] were first contained in the first proposed amended complaint [of *13 February 22, 2012]. . . . Judge Trombley’s March 21, 2012 order sustained the defendants’ objection, [such that] the first proposed amended complaint did not become operative. These expanded allegations are also incorporated by reference in each of the subsequent counts of the currently proposed [substitute] complaint. In the sixth count, the plaintiff expands on the allega- tions to add that he suffered additional stress and anguish in the course of the dissolution action.’’ (Foot- notes added.)
It is clear in striking the substitute complaint that Judge Shapiro concluded that the plaintiff was violating the prior orders of both Judge Trombley and Judge Dooley. Judge Shapiro stated: ‘‘[The] plaintiff has not restated a cause of action by supplying the essential allegation lacking in the complaint that was stricken. . . . Rather, he has alleged a set of facts which are not materially different than that single group of facts which was the subject of Judge Dooley’s memorandum of decision.’’ (Citation omitted; internal quotation marks omitted.) With respect to Judge Trombley’s prior orders, Judge Shapiro further articulated: ‘‘[C]ontrary to Practice Book § 10-60 (a), and Judge Trombley’s [March 21, 2012] order, in the [substitute] complaint, the plaintiff seeks, without consent or the court’s per- mission, to amend the complaint to add factual allega- tions and legal theories which were not allowed by Judge Trombley’s ruling sustaining the plaintiff’s previ- ous objection to the plaintiff’s request to amend. . . . [T]he plaintiff previously sought to add the expanded allegations concerning alleged unauthorized represen- tation, which was not permitted. In addition, the plain- tiff previously sought to claim conspiracy to defraud and violation of CUTPA, both of which are now included as theories in the [substitute] complaint. Judge Trom- bley’s ruling precluded these amendments. The plain- tiff’s [substitute] complaint’s changes in legal theories are even more untimely now than when Judge Trombley sustained the defendants’ objection to the plaintiff’s request to amend in March 2012.’’ [14]
In summary, Judge Shapiro found that the plaintiff, in his substitute complaint, sought to add the expanded allegations concerning alleged unauthorized represen- tation, which previously were not permitted by Judge Trombley. In addition, the plaintiff sought to add counts sounding in conspiracy to defraud and violation of CUTPA, which Judge Trombley also had disallowed. Furthermore, all of his proposed new counts included references to violations of the Rules of Professional Conduct, which Judge Dooley ruled rendered any count legally insufficient. Finally, all of the plaintiff’s proposed new counts were untimely in light of the time the case had been pending and the fact that all of the new allega- tions pertained to events that occurred prior to the initiation of this action. After a thorough review of the pleadings, we do not find error in Judge Shapiro’s con- *14 clusion that all of the newly alleged counts in the plain- tiff’s substitute complaint contained materially similar allegations to those in his February 22, 2012 first pro- posed amended complaint, as rejected by Judge Trom- bley, and the first count of his May 22, 2012 second revised complaint, as rejected by Judge Dooley. Given that similarity and the considerable amount of time that had passed since the action initially was brought, it was within Judge Shapiro’s discretion to sustain the defendants’ objection to the plaintiff’s substitute com- plaint.
In his claim as to the impropriety of Judge Shapiro’s rulings, the plaintiff also argues, in conclusory fashion with scant analysis, that he was denied due process when Judge Shapiro struck the plaintiff’s substitute complaint from the docket and subsequently rendered judgment for the defendants. We disagree.
‘‘A fundamental premise of due process is that a court
cannot adjudicate any matter unless the parties have
been given a reasonable opportunity to be heard on the
issues involved . . . . It is a fundamental tenet of due
process of law . . . that persons whose . . . rights
will be affected by a court’s decision are entitled to be
heard at a meaningful time and in a meaningful man-
ner.’’ (Internal quotation marks omitted.)
Stone
v.
Pattis
, supra,
Practice Book § 10-44 provides that ‘‘in those
instances where an entire complaint .
.
. has been
stricken, and the party whose pleading . . . has been
so stricken fails to file a new pleading within [a] fifteen
day period, the judicial authority may, upon motion,
enter judgment against said party on said stricken com-
plaint . . . .’’ Here, the plaintiff’s entire complaint was
stricken on July 26, 2012. On or before August 9, 2012,
the plaintiff failed to file a proper new pleading. Before
his substitute complaint was stricken, he had ample
opportunity to reply to the defendants’ objection to
it. After Judge Shapiro considered all of the plaintiff’s
arguments and ruled on the defendants’ objection, the
case fell squarely within the provision of Practice Book
§ 10-44, allowing Judge Shapiro to grant the defendants’
September 27, 2012 motion for judgment. Despite his
reliance on Practice Book § 10-44, the plaintiff had no
right under that provision to replead the August 6, 2012
substitute complaint, as that complaint was not dis-
posed of by means of a motion to strike, but rather
by objection. On September 25, 2012, Judge Shapiro’s
decision on the defendants’ objection to the substitute
complaint gave the plaintiff guidance as to a possible
way to remedy the legal and procedural deficiencies of
his pleading. He could have requested leave to file an
amended complaint, but he failed to do so before the
court ruled on the defendant’s motion for judgment,
despite the fact that a properly amended complaint was
long overdue as a result of Judge Dooley’s July 26, 2012
*15
ruling. See
Peoples Carberry
, Superior Court, judicial
district of Stamford-Norwalk at Stamford, Docket No.
CV-10-5013413-S (June 14, 2011) (
The judgment is affirmed.
In this opinion the other judges concurred.
[1]
Practice Book § 10-35 provides: ‘‘Whenever any party desires to obtain
(1) a more complete or particular statement of the allegations of an adverse
party’s pleading, or (2) the deletion of any unnecessary, repetitious, scandal-
ous, impertinent, immaterial or otherwise improper allegations in an adverse
party’s pleading, or (3) separation of causes of action which may be united
in one complaint when they are improperly combined in one count, or the
separation of two or more grounds of defenses improperly combined in
one defense, or (4) any other appropriate correction in an adverse party’s
pleading, the party desiring any such amendment in an adverse party’s
pleading may file a timely request to revise that pleading.’’
Practice Book § 10-37 (b) explains the procedure for objecting to a request
to revise, and provides in relevant part: ‘‘If the judicial authority overrules
the objection, a substitute pleading in compliance with the order of the
judicial authority shall be filed within fifteen days of such order.’’
Judge Trombley had disallowed in his order of March 21, 2012, and that the
contained the expanded allegations as to unauthorized representation that
defendants’ failure to file a request to revise for a
second
these expanded allegations constituted a waiver of any objection to their
time to object to
in the first proposed amended complaint that were prohibited by Judge
Trombley are not contained in the plaintiff’s second revised complaint.
inclusion. A review of the first and second revised complaints, however,
indicates that the expanded allegations as to unauthorized representation
Accordingly, we find no waiver on the part of the defendants that somehow
would have negated Judge Trombley’s order.
the granting of any motion to strike, the party whose pleading has been
May 22, 2012 second revised complaint.
record or proceedings at any time subsequent to [the first thirty days after
ment appended, after service upon each party . . . and with proof of service
stricken may file a new pleading . . . .’’
the return day] in the following manner:
be necessary to compel the parties to join issue in a reasonable time for trial.’’
endorsed thereon. . . .
The plaintiff argues that his May 22, 2012 second revised complaint
[2]
[5]
Practice Book § 10-44 provides in relevant part: ‘‘Within fifteen days after
The plaintiff has not appealed the order striking the first count of his
‘‘(a) . . . [A] party may amend his or her pleadings or other parts of the
Practice Book § 10-60 provides in relevant part:
‘‘(1) By order of judicial authority; or
[4]
[3]
‘‘(3) By filing a request for leave to file such amendment, with the amend-
‘‘(2) By written consent of the adverse party; or
‘‘(b) The judicial authority may restrain such amendments so far as may
to reargue, asking Judge Trombley to reconsider the decision suspending the
Nearly a month later, on February 27, 2012, the plaintiff filed a motion
February 8, 2012 deposition. By that point, the parameters of any proposed
rescheduled deposition had been greatly altered, as the court had pending
before it the plaintiff’s request for leave to file his February 22, 2012 proposed
amended complaint. It would have been impossible for the court to resched-
*16
ule the deposition after only reconsidering the status of the parties’ dispute
as of February 8, 2012. Judge Trombley summarily denied the motion to
reargue. The plaintiff has not sought articulation of this order or appealed
the denial of the motion to reargue.
[7]
The plaintiff also claims that the court acted improperly in dismissing
the claim absent the defendant’s filing of a motion to dismiss. This claim
is without merit, as ‘‘[i]t is a fundamental rule that a court may raise and
review the issue of subject matter jurisdiction at any time.’’ (Internal quota-
tion marks omitted.)
Stone
v.
Pattis
,